Te Kani v Police - [2014] NZHC 82

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-42 [2014] NZHC 82

DAVIS MILTON TE KANI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2013

Appearances: J Ross for Appellant
E L Higbee for Respondent

Judgment: 7 February 2014

RESERVED JUDGMENT OF MANDER J

Introduction

[1] On 22 November 2013 the appellant was sentenced by Judge Phillips to three months community detention, nine months supervision, and 120 hours community work on charges of male assaults female and threatening to kill. As signalled at the time of an earlier sentencing indication the Judge also imposed a protection order. The sentencing Judge considered it necessary for the protection of the victim that a protection order be made. It is against that order which this appeal lies.

Factual background to offending

[2] At the time of the offending, the victim was the partner of the appellant; she was seven and a half months pregnant.

TE KANI v NEW ZEALAND POLICE [2014] NZHC 82 [7 February 2014]

[3] The offending appears to have arisen as a result of the appellant becoming annoyed and upset with the victim, who he considered was excessively socialising and consuming alcohol. Allegations were made of her having sexual relations with other men, and there was an escalation of abuse as the appellant became aggressive and angry. This culminated in the appellant punching the victim in the head twice, pulling her hair and telling her that he was going to kill her.

Victim impact statements

[4] On 5 November 2013, the appellant received a sentence indication from Judge Phillips. The indication was accepted and the appellant pleaded guilty accordingly.

[5] At the time of the sentence indication, the Judge had available to him a victim impact statement. In that statement the victim informed the Court that she had been in a relationship with the appellant for about a year, and that she was 14 years younger than him. She described the relationship as difficult, requiring her to often stay at her mother’s address nearby. In relation to the assault itself, she described becoming scared when the appellant became angry at her, that the appellant was verbally abusive towards her, and that this type of domestic violence was a recurring part of their relationship. She described the appellant as being very controlling and overpowering at times. At the end of the statement the victim advised that she would like the Court to consider a protection order. She thought it would be a good idea as it would protect her child as well. The victim stated that she was looking at ending the relationship but did not know how.

[6] By the time of the sentence hearing, the Court had been provided with an updated victim impact statement. The content of the statement was the same apart from that relating to the protection order. The victim now advised:

I know that in my last statement, I said that I wanted a Protection Order issued by the Court, but I…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Te Kani v Police

Details

AGLC: Te Kani v Police [2014] NZHC 82
Case: [2014] NZHC 82
Decision Date: 7 February 2014

CaseChat Overview and Summary

Davis Milton Te Kani appealed a protection order imposed by Judge Phillips as part of his sentence for domestic violence offences. The appellant contended that the sentencing judge was not entitled to disregard the victim's updated impact statement in which she indicated she no longer wanted a protection order imposed. Te Kani submitted that the victim's revised statement amounted to an objection to the imposition of a protection order and that the judge therefore lacked jurisdiction to impose the order under s 123B of the Sentencing Act 2002. The Crown argued that the question of whether the victim objected to the imposition of a protection order was a question of fact for the sentencing judge, and that Judge Phillips was entitled to conclude that the victim's revised statement did not amount to an objection. The Court considered whether the victim's revised impact statement amounted to an objection to the making of a protection order and whether the sentencing judge had jurisdiction to make the order. The Court held that the sentencing judge was entitled to conclude that the victim's revised statement did not amount to an objection and that the judge therefore had jurisdiction to make the order. The Court found that the victim's revised impact statement did not constitute an objection to the making of the protection order and that the sentencing judge was therefore entitled to impose the order. The Court dismissed the appeal.

Orders